Author: Yashika Pandya, Shri Vaishnav Vidyapeeth Vishwavidyalaya, Indore (M.P.)
To the Point
India, as a secular democracy, guarantees its citizens certain fundamental freedom including, freedom of speech and expression enshrined within “Article 19(1)(a)”, but such freedom comes with “reasonable restriction” to maintain public order, decency or morality under “Article 19(2)”. However, Constitution of India also guarantees “Freedom of religion” under Article 25. Yet, these two rights often collide, especially in creative spaces like cinema and fashion. Artistic expression that challenges the orthodoxy or shows religious symbols in a new light are frequently accused of hurting “sentiments” invoking Article 25 as a shield for religion sensibilities. As Article 19 guarantees expressive liberties within limits, and Article 25 guards religious sentiments, a critical dilemma arises: Where should the line be drawn between artistic freedom and religious offence?
Legal Jargon
“Article 19 (1)(a): Guarantees freedom of speech and expression”
“Article 19(2): Defines reasonable restrictions on freedom of speech and expression such as public order, decency or morality and security of state etc.”
“Section 295A, IPC: Deals with deliberate and malicious acts intending to outrage religious feelings of any class by insulting its religion or religious beliefs.”
“Section 292, IPC: Deals with sale and distribution of obscene material including books, pamphlet, papers drawings, paintings, or representations, or any other object.”
Pre-censorship: Review and approval of content before its public release (eg. Films by CBFC).
The Proof
Artistic expression through films, advertisements, fashion and design concepts has often sparked controversy, particularly in India, nation marked by its cultural and religious diversity. In such a context, it is difficult to guess which creative work can offend a particular community or trigger public protests. Here are some notable instances of such creative expression which agitated religious sentiments of people leading to legal scrutiny or social unrest:
Padmaavat (2018)
The historical film, directed by Sanjay Leela Bhansali, faced widespread protests, primarily from the Rajput Karni Sena. The controversy arose from the rumours and assumptions that the film depicted romantic dream sequence between Queen Padmavati and invading Sultan Alauddin Khilji. Numerous FIRs were filed against the director and casts across various states. Several states banned the film, citing the potential law and order issues, then Supreme Court intervened and strike down the state level bans, allowing the film release. The apex court emphasized that once Central Board of Film Certification (CBFC) approves a film, state cannot impose arbitrary bans on it.
PK (2014)
PK is a satirical comedy film, starring Amir Khan, which questions the superstitions, blind faith and commercialization of religion, particularly by the “Godmen” (self-proclaimed spiritual leaders). The film, by some Hindu groups was perceived as disrespectful and insulting their religious beliefs. Multiple FIRs were filed against the filmmakers and actors under section 295A of IPC, protests erupted in several cities with some groups vandalizing the cinema halls and demanding the ban on the film. Supreme Court dismissed the petitions that were filed seeking the bon on film, stating that film should not be banned merely because a section of society finds it offensive. The film was eventually released widely.
Designer Lisa’s blue bikini with Goddess Laxmi (2011)
A swimsuit featuring an image of Goddess Laxmi printed on the bottom part was showcased by Designer Lisa Blue on Australian Fashion Week. The controversial design led to widespread outrage across several Indian states. Members of various Hindu groups including, “Shiv Sena, Vishwa Hindu Parishad and Bajrang Dal” staged protests, condemning use of sacred religious symbol on swimwear as deeply offensive and disrespectful. In response to the backlash, the designer label issued an apology and withdrew the product, expressing regret for hurting religious sentiments of Hindu community.
Abstract
The “freedom of speech and expression under Article 19(1)(a)” and “freedom of religion under Article 25” of the Indian Constitution frequently comes into conflict. Artistic expression that reinterprets orthodoxy or portray religion symbol or sacred elements in a modern light have often sparked controversy, primarily due to their perceived impact on religious sentiments. As a secular nation, with diverse religions and cultures, India faces complex challenge of determining which creative expression might offend which community. This article explores the constitutional tension between Article 19(1)(a) and Article 2, examines judicial decisions and controversial instances, where artistic freedom clashed with religious sentiments.
Case Laws
“S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574
The case involved a film that critiqued the government’s reservation policy and faced revocation of its “U certificate” by the Madras High Court, leading to an appeal to the Supreme Court. The Supreme Court upheld freedom of speech and expression and emphasized that “tolerance is the cornerstone of democracy.”
“K.A. Abbas v. Union of India (1971) AIR 481
The Supreme Court upheld the constitutionality of film censorship in India, especially pre censorship, as provided under Cinematography Act, 1952. The court acknowledged that while film censorship is restriction on freedom of speech and expression, it is reasonable restriction justified in the interest of public order, morality, and decency.”
“Ramesh v. Union of India (1988) AIR 1033
The Supreme Court of India dismissed the writ petition under Article 32 of the Constitution. The Court found that the Film Censor Board had approved the exhibition of the film and the Doordarshan authorities also scrutinised the film before it was exhibited on the television screen.”
Conclusion
The interplay between freedom of expression and religious sentiments remains an ongoing challenge for Indian jurisprudence. Nevertheless, judiciary’s continued efforts to strike a constitutional balance, particularly in cases involving controversial artistic expression, have contributed meaningfully to address this tension. Moving forward, there is pressing need of greater public awareness and tolerance towards diverse forms of expression as well as more nuance interpretation of legal provisions such as Section 295A, focusing on genuine malicious intent rather than perceived offence.
FAQs
What is the legal limit to “freedom of speech and expression” in India?
Under “Article 19(2)”, the freedom of speech and expression is subject to reasonable restrictions in matters concerning public order, national security, decency and morality.
How does Section 295A of IPC relate to this issue?
Under Section 295A, any act carried out with a wilful and malicious purpose to outrage the religious feelings of a particular community, through insult or attempted insult to their religion or beliefs, is considered a criminal offence. As the article discusses artistic expression which hurts the religious sentiments, Section 295A automatically applies.
Can artists be prosecuted for their creative work in India?
Yes, artists can be prosecuted for their creative work in India if their work is deemed to violate reasonable restrictions under Article 19(2) such as being obscene, promoting enmity between groups or deliberately or maliciously outraging religious feelings.
